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Dobbs, Korematsu, and Hirabayashi (with a special appearance by Min Yasui!) [1]

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Date: 2022-10-06

I once knew Min Yasui, one of three American citizens of Japanese descent who, in a trio of cases decided by the Supreme Court in 1943 and 1944, had their convictions upheld for violating supposed security orders that applied only to those of their race. These three cases show just how dangerous to our liberties the Supreme Court’s decision overturning the constitutional right to control of their bodies women had enjoyed for half a century really is. Let me explain.

In Dobbs v. Jackson Women’s Health Organization, 597 U.S. ____ (2022) the majority goes to great pains to say what it’s not about. Specifically, says the opinion, abortion is “critically different” from other rights that had been held to fall within the Fourteenth Amendment, listing “intimate sexual relations, contraception, and marriage.” And it goes even further in its attempts to offer comfort saying that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Slip Opn., p. 66.

Now, why should we doubt the truthfulness of this? Well, ok, it’s not like this is a statement under oath. So in that way it is different from the testimony every justice who voted in favor of over-turning Roe gave at their confirmation hearings. You know that testimony where they talked about it being a precedent and entitled to the protections of stare decisis, which is lawyer speak for, God, I’m glad I don’t have to deal with this. Or, as Dobbs’ author Samuel Alito put it, Roe is “entitled to considerable respect.” (https://www.washingtonpost.com/politics/2022/06/24/justices-roe-confirmation-hearings/) As in, Come on, baby, I’ll still respect you in the morning…and then tell all my frat bros that you’re a slut in the afternoon.

Rather, as Justice Thomas, that uncomfortable truth-teller of the conservative legal movement, explains of course the Court is not overturning any other cases because no one has asked them to. But he also says that the cases dealing with the right of married persons to obtain contraceptives (Griswold v. Connecticut), engage in private, consensual sexual acts (Lawrence v. Texas), or the right to same-sex marriage (Obergefell v. Hodges), all based on the Court’s view of substantive due process – i.e. the source of the abortion right in Roe – are “demonstrably erroneous,” he says, quoting no less an authority than himself. Slip opn., Concurrence, p. 3. Notably, Justice Thomas does not include among these demonstrably erroneous decisions Loving v. Virginia which applied the same flawed (in Justice Thomas’s view) reasoning to find that the 14th Amendment barred states prohibitions on interracial marriages. As any good originalist can tell you, if 29 of the 37 states, including Virginia, had anti-miscegenation laws at the time the 14th Amendment was passed, it could hardly be said that those states in ratifying the 14th Amendment, as Virginia did, intended to make their own state laws unconstitutional. But Justice Thomas is willing to lose all of his originalist street cred and turn into a regular Justice Stephen-my-constitution-is-alive-Breyer when it comes to interracial marriage, looking to the purpose of the Amendment rather than what those voting for it thought. Don’t believe me? Check out his Footnote 5 in his Obergefell dissent. You’d almost think Justice Thomas was a black man married to a white woman living in Virginia. Of course, Loving was based not only on due process but also Justice Thomas’s favorite source of freedom, the 14th Amendment’s equal protection clause. But, as my colleague Cliff Lee points out, so is Obergefell. (Justice Thomas’s love affair with the equal protection clause may be based, at least in part, that unlike the due process protections of the 14th Amendment, the equal protection clause only applies to citizens.)

But we don’t have to take Justice Thomas’s word for it. We’ve seen this dance before.

In 1944 the Court issued Korematsu v. United States, 323 U.S. 214 (1944) finding, well let’s not be euphemistic about it, that sure, why not, you can put American citizens of Japanese descent into concentration camps. Well, technically, you can’t order them into concentration camps. You can just exclude them from the Western United States, and if that means they have to report to an assembly center and be transported under military control to a relocation center, well, that might be a hard question. Fortunately for the Court it only had to decide the case before it, which involved an exclusion order. Korematsu at p. 222. See how it works?

Not the brightest moment in Supreme Court history, but, well, we all make mistakes and no less an eminent authority on mistakes than Chief Justice John Roberts, 74 years after the fact, said that the decision by the Court to allow people to be treated negatively by the Government because they belong to a disfavored race is repugnant to the Constitution. He did so in a decision holding that the Constitution doesn’t prohibit the Government’s treating people negatively because they belong to a disfavored religion. Hawaii v. Trump, 585 U.S. ___, slip opn., p. 38 (2018). Which means in a mere 74 years some future Supreme Court will overturn Hawa…Ha. Just kidding. Like we’re still going to be a democracy in 74 years.

But, how did the Court in Korematsu reach its decision and what does it have to do with Dobbs? Well, a year before Fred Korematsu’s case came before the Court it had to deal with a different Japanese American, Gordon Kiyoshi Hirabayashi. Hirabayashi v. United States, 320 U.S. 81 (1943). Like Mr. Korematsu, Mr. Hirabayashi, an American citizen, refused to report for deportation. But he did so much more. He also violated the curfew that prohibited Japanese Americans from being on the streets between 8:00 p.m. and 6:00 a.m. The cur. And, as it happened, the same statute that made it a crime to disobey the exclusion order also made it a crime to disobey the curfew. Even the penalties were the same. Hirabayashi, 320 U.S. 105.

So lucky for it, the Court didn’t need to consider the much harder question of whether excluding citizens from the Western United States and sending them to concentration camps solely on the basis of race violated the Constitution. It merely had to decide whether the Nation’s extraordinary security needs in time of war allowed the relatively minor inconvenience of a curfew to be imposed based on racial classification. And, guess what, nine white men had no problem finding that non-white people could be treated differently because, well, you know, they’re not white. Hirabayashi, 320 U.S., 104-105.

Fast forwarded another year and now the Court has to face squarely the issue it had ducked in Hirabayashi. And what does it say? Oh, that, well, they had already decided all this in Hirabayashi. Korematsu, 323 U.S. 217. Sorry Fred.

But wait, didn’t the Dobbs Court say that abortion is different because it involves potential life? Sure, just like the Korematsu Court acknowledged that obviously forcing people to leave their homes is different from a curfew, but, well, “In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did.” Korematsu, 323 U.S. at p. 217.

So, some day, the same Justices who voted to overturn Roe can, and let’s face it if given the chance will, overturn the other “mistakes” they see in their past. Those past decisions, like Roe, construed a document originally written by a small set of white property owning males as a document that grew with its times. As the Court in Obergefell put it: “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” Obergefell, 576 U.S. at p. 664.Well, that was then, Now the rule is that the period surrounding the passage of the 14th Amendment – for those of you playing along at home, that’s more than 150 years ago – is all that counts. Dobbs, Slip Opn., p. 16. Could you, in most states, go into a pharmacy and buy birth control, have gay sex, marry someone of the same sex, or even marry someone of a different race (sorry Justice Thomas), in 1868? No? Well then, get the heck out of my court room? Now maybe state legislatures are not burning to bring back anti-miscegenation laws and prohibitions on sodomy. But under Dobbs’ reasoning, they can.

It happens on the same day the Court decided Hirabayashi, it also decided Yasui v. United States, 320 U.S. 115 (1943). Note that this decision starts 34 pages later than Hirabayashi. It’s a tag along. The case involved Minoru Yasui, another American citizen of Japanese dissent also convicted of disobeying the curfew. And what does the Court say? “Hey, no skin off our nose, you physical manifestation of the Yellow Peril, see what we just did to that [insert your chosen racial epithet here] in the previous case, and enjoy your time in jail.” (This is not a direct quote.) And since poor Min had only violated the curfew but not the exclusion portion of the order, he perforce played second fiddle to Mr. Hirabayashi. Thus is the fleeting fame of having a big-name Supreme Court decision denied to some.

I bring this up only because as I said I knew Min. In 1977 I did a summer internship at the Denver Council on Community Relations, Min Yasui, Executive Director. Now a summer intern is not the highest ranking person in any office, but it’s not like the Denver CCR had the largest of payrolls. I actually interviewed with Min, and saw him at our regular staff meetings. Every day I would also see him in his office, sucking on his pipe, wearing his suit jacket, looking down at whatever report, study, or proposal required his approval, and every evening when I’d leave he’d still be at his desk, still in his jacket, still sucking on his pipe, and still looking down at something. And every morning when I signed in, because we actually physically signed in, at the top of the sheet I’d see in the most impeccable, precise, near calligraphic handwriting “Minoru Yasui” with an arrival time of 6:00 a.m., give or take a minute or two. Because, as the joke went, if Denver ever had to pay Min Yasui his overtime it would bankrupt the City.

And I didn’t have a fucking clue who he was. Now admittedly it’s not like I could Google him, or check his Linked-In profile, or even Ask Jeeves on my phone, which was made of Bakelite, weighed about four pounds, was attached by a cord to the wall, and lived on my desk. Nor would I even had known to do so.

But you would think, in between the jokes about Min’s hours and bankrupting the City, someone maybe would have pulled my coat-tail and tell me that I worked for a fucking American hero. But nobody ever did, and I finished my internship, and decades later got a law degree and somewhere along the line figured out just who I worked for years after Min, whose Presidential Medal of Freedom was posthumous, died in 1986. So I never got to ask him about the case, or just tell him how much I admired him not for his work ethic but for his willingness to stand up to tyranny. And I couldn’t let this go without saying that here.

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